Citation Nr: 0428342
Decision Date: 10/14/04 Archive Date: 10/19/04
DOCKET NO. 00-06 945A ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. The propriety of the initial noncompensable evaluation
assigned for chronic right knee strain.
2. The propriety of the initial noncompensable evaluation
assigned for chronic left knee strain.
3. The propriety of the initial noncompensable evaluation
assigned for right ankle strain.
4. The propriety of the initial noncompensable evaluation
assigned for a left ankle strain.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Steven D. Reiss, Counsel
INTRODUCTION
The veteran served on active duty from July 1977 to January
1986 and from March 1987 to April 1988.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 1999 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida, that granted service connection for
chronic right and left knee strain; right and left ankle
strain; and plantar fasciitis of the right and left feet; and
assigned initial noncompensable evaluation for each of these
conditions, effective May 19, 1997. The veteran perfected a
timely appeal of these determinations to the Board.
In April 2001, the veteran, accompanied by his
representative, offered testimony at a hearing held at the
local VA office before the undersigned Veterans Law Judge
(formerly referred to as a Member of the Board).
When this matter was previously before the Board in August
2001, his claims seeking initial compensable evaluations for
his plantar fasciitis of the right and left foot were denied.
In that same decision, the Board remanded for further
development his claims seeking initial compensable ratings
for his chronic right and left ankle strain and right and
left ankle strain.
Because the veteran disagreed with the initial ratings
assigned for his chronic right and left ankle strain and
right and left ankle strain, the Board has characterized
these claims as reflected on the title page. See Fenderson
v. West, 12 Vet. App. 119, 126 (1999).
FINDINGS OF FACT
An outstanding felony arrest warrant for the veteran's
arrest, which was issued on October 1, 1991, by Monterey
County, California, remains active and pending, rendering the
veteran a fugitive felon.
CONCLUSION OF LAW
The eligibility criteria for entitlement to VA compensation
benefits for the veteran's chronic right and left knee strain
and right and left ankle strain are not met as a matter of
law. 38 U.S.C.A. § 5313B (West 2002); 38 C.F.R. § 3.666(n)
(2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VCAA
There has recently been a significant change in the law. On
November 9, 2000, the President signed into law the Veterans
Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). Among other
things, this law redefines the obligations of VA with respect
to the duty to assist, and supersedes the decision of the
United States Court of Appeals for Veterans Claims (Court) in
Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom.
Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000)
(per curiam order), which had held that VA cannot assist in
the development of a claim that was not well grounded.
This liberalizing law is applicable to most claims that are
currently pending before VA. See Bernklau v. Principi, 291
F.3d 795, 806 (Fed. Cir. 2002). The Act and its implementing
regulations (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a)) provide that VA will assist a claimant in obtaining
evidence necessary to substantiate a claim. 38 U.S.C.A.
§ 5103A (West 2002); 66 Fed. Reg. 45620 (to be codified at
38 U.S.C.A. § 3.159(c)). The Court, however, has held that
VA's duties to notify and assist contained in the VCAA are
not applicable to cases such as this one in which the law,
rather than the evidence, is dispositive. See Smith v.
Gober, 14 Vet. App. 227, 231-32 (2000), aff'd 281 F.3d 1384
(Fed. Cir. 2002); Mason v. Principi, 16 Vet. App. 129, 132
(2002).
Background and Analysis
In an August 2003 letter from the Atlanta, Georgia, RO, to
the Director of the St. Petersburg, Florida, RO, the Atlanta
RO alerted the St. Petersburg RO that the veteran was a
fugitive felon. In a letter dated later that same month, the
St. Petersburg, Florida, RO advised the veteran that it was
notified by law enforcement authorities that there was an
outstanding warrant for his arrest and that he was considered
a fugitive felon. The letter indicated that under the law
payment of VA benefits to veterans and their dependents was
prohibited, and proposed to suspend his receipt of benefits
effective December 27, 2001; the RO stated that his
entitlement to payments would resume when the warrant was
cleared by "arrest or otherwise."
A Report of Contact, dated in November 2003, reflects that
the St. Petersburg, Florida, RO, spoke with an employee of
the Monterey County Warrants Office and confirmed that an
active felony warrant from that jurisdiction was issued for
the veteran's arrest on October 1, 1991.
In a Report of Contact dated later in November 2003, the
veteran, who had recently been released following a period of
imprisonment at the Pinellas, Florida, County Jail, asserted
that all penal institutions check to see whether there are
any outstanding warrants prior to releasing someone from
prison so that it was impossible that one existed from
California; however, he indicated that he was currently
attempting to contact that state in regard to this matter.
Written documentation dated in December 2003 shows that the
RO again contacted the Monterey County Warrants Office, which
confirmed that existence of the October 1, 1991, felony
arrest warrant, but notified the St. Petersburg, Florida, RO
that the state of California was not interesting in
extraditing the veteran from Florida.
In a letter to the veteran dated later that same month, the
RO cited its August 2003 letter and notified the veteran that
it would have to suspend his benefits effective on December
27, 2003, if he were still considered a fugitive felon on
that date. The RO explained that it had contacted the
Monterey County Warrant Agency and learned that there was
still an active warrant for his arrest that was issued on
October 1, 1991. The RO provided the veteran with the
address and telephone number of the Monterey County Warrant
Agency and reiterated that his payments could resume as of
the date the warrant was "cleared"; however, the RO advised
him that if he failed to notify VA within one year of the
termination of his fugitive status, resumption of payments
would be made based on the date of that notification.
The veteran did not respond to the RO's December 2003 letter,
and in a June 2004 rating decision issued to the veteran as
part of the June 2004 Supplemental Statement of the Case, the
RO confirmed and continued the denial of the veteran's
claims, noting that there was an outstanding warrant for his
arrest in California, and indicated that until that matter
was "cleared up," all VA compensation benefits would be
withheld.
Under 38 U.S.C.A. § 5313B(a), a veteran who is otherwise
eligible for VA benefits, including VA compensation benefits,
may not be paid or otherwise provided such benefit for any
period during which such veteran was a fugitive felon.
Subsection (b) of the statute defines a "fugitive felon" as
someone who is a fugitive by reason of either fleeing to
avoid prosection, or custody or confinement after conviction
for an offense, or an attempt to commit an offense, which is
a felony under the laws of the place from which the person
flees. See also 38 C.F.R. § 3.665(n).
Here, although the veteran's representative has submitted
argument on the merits of the veteran's claims challenging
the propriety of the initial noncompensable evaluations
assigned for his service-connected right and left knee and
right and left ankle disabilities, the evidence shows that
there remains an outstanding felony warrant for the veteran's
arrest in Monterey County, California, that was issued on
October 1, 1991. Under these circumstances, pursuant to
38 U.S.C.A. § 5313B and 38 C.F.R. § 3.665(n), the law
prohibits the payment of VA compensation benefits to the
veteran. The law is thus dispositive of the issue presented.
As the veteran's claim lacks legal merit, it must be denied
as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426,
430 (1994).
ORDER
Compensable evaluations for chronic right and left ankle
strain and right and left ankle strain are denied.
____________________________________________
LAWRENCE M. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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